Sheehy v. Flaherty , 8 Mont. 365 ( 1889 )

Bach, J.

This is an action brought under the Forcible Entry and Detainer Act. It was commenced in the Justice’s Court of Boulder Township, and the defendant took an appeal to the District Court of Jefferson County. The defendant appeals from the judgment entered against him in that court.

The Supreme Court of this Territory has twice decided that neither title nor the right of j>ossession is at issue, or can be made an issue in an action of this kind. (See Parks v. Barkley, 1 Mont. 514; Boardman v. Thompson, 3 Mont. 387.) Those cases, we think, state the rule correctly. We decide, therefore, that the District Court had jurisdiction on appeal from the Justice’s Court, because the latter court had jurisdiction, and properly refused to certify the cause to the District Court without trial; and that the district judge properly refused to allow any question of title to be raised either in the evidence or by the instructions. It appears from the statement on appeal that while the plaintiff was in the actual possession of certain lands, the defendant took down a portion of the fence which was standing on the premises and entered thereon, and cut and removed therefrom some hay. The entry was made in the presence of the plaintiff. The testimony does not show that any actual force was used or threatened, or that the entry was made against the will or protest of the plaintiff. The court charged the jury as follows: “While the elements of force in order to constitute this offense is a term, which, in law, means any act which deprives the owner of his property, as the breaking of his enclosure, it is not necessary that it should amount to personal violence, or such acts as to intimidate the owner, by means of which possession is relinquished. In other words, if the defendant entered into the fields of the plaintiff by laying down his fence, breaking his enclosure, going upon it with his team and men, mowing the grass and cutting the grain, this will be in law a forcible entry.”

The action for forcible entry and detainer is quad criminal; it is a statutory action, framed to prevent breaches of the peace, and the settlement of conflicting claims by force. Therefore the defendant cannot justify by showing either perfect title or right of possession, but must confine his defense to actual possession. (See Comp. Stats. § 723, p. 247; also cases already cited.) The action is not a substitute for the action of trespass, and was not under the English statute from which our statute was taken. The statute does not include every entry upon lands or every trespass. As is stated by Chief Justic Wade in Boardman v. Thompson, cited above, on page 378, “it provides a summary remedy, when such possession is invaded either by a forcible entry or a peaceable entry in the temporary absence of the person in possession, or by unlawful detainer,” the expression “unlawful detainer” including a “peaceable entry and a forcible turning out or frightening by threats.”

We are not to be understood as declaring that there must be actual physical force, or an actual or threatened breach of the peace, in order to make an entry made in the presence of one in possession a “forcible entry.” But the trial judge, in the latter partof the instruction, states to the jury what constitutes a “ forcible entry,” and the rule there stated would make every entry upon land a “forcible entry,” even though it was not made against the protest of the party in possession and actually present. Such a rule would prevent a landlord from entering upon the premises to demand his rent or a surrender of the premises. (See Commonw. v. Dudley, 10 Mass. 404.) The case of Croff v. Ballinger, 18 Ill. 200; 65 Am. Dec. 735, lays down a rule more favorable to the respondent than we can find in any other reported case; but the instruction given to the jury in that action plainly states that the entry must be made “without the consent, and against the will of the party in possession.”

We are of the opinion that the instruction complained of is erroneous. This seems to be a perversion of justice, for there is evidence in the record to sustain the verdict, and we believe that the trial judge would have modified the instruction if he had been requested so to do.

In this Territory as elsewhere, a general objection to testimony will not avail a party on appeal. But an instruction containing a correct rule of law when considered in the abstract, but faulty when applied to a particular case, is ground for a reversal, even though counsel for appellant raises no objection, even though he, at the trial, is content with the same. We believe that Montana is one of only two jurisdictions in which such a rule prevails; we believe that a bar and a people who complain of delay in obtaining justice would do well to amend the law in this respect, and that the same formality which applies to objections to evidence should apply to objections to instructions. If the instruction is plainly erroneous, the neglect of counsel to call the attention of the trial judge to it should constitute a waiver; on the other hand, if the error is so veiled as to escape the inspection of counsel learned in law, it may well be doubted that such error could injure his cause with the jury-

The judgment in this cause we consider a most righteous one; but there was an error in the instruction defining the law which is the foundation of the action. The judgment is accordingly reversed, and the cause is remanded for a new trial.

Liddell, J., concurs.